Butts v. Ajax-Grieb Rubber Co.
| Decision Date | 07 April 1913 |
| Citation | 155 S.W. 837,169 Mo.App. 657 |
| Parties | JOSIE BUTTS, Respondent, v. AJAX-GRIEB RUBBER CO., Appellant |
| Court | Kansas Court of Appeals |
Appeal from Jackson Circuit Court.--Hon. W. O. Thomas, Judge.
REVERSED AND REMANDED.
Case reversed and remanded for a new trial.
John G Schaich and Hunt C. Moore for appellant.
O. H Barker for respondent.
--Plaintiff sues to recover of defendant three hundred dollars, the balance due on a loan made by her to defendant's agent Enoch Graf.
Defendant is a corporation, with its home office and manufacturing plant located outside this State, and having wholesale and retail stores in different cities throughout the United States. Graf was defendant's general agent to manage defendant's store at Kansas City. He was termed branch manager by the defendant.
The store in Kansas City was opened by Graf September 1, 1908, and was run in Graf's name. He testifies that the company, being a foreign corporation was, without any license to do business in this State as required by section 3342, R. S. Mo. 1909, and to avoid taking out such license, the business was all done in his name. The business consisted of selling automobile supplies, mechanical rubber goods, druggist sundries and bicycle tires.
There is no doubt but that the business was run in Graf's name and that no bank account was ever opened in Kansas City in defendant's name. It is conceded also that Graf had full management of the branch and its business here. He employed the traveling men, office help, etc., and had general charge of the business. It is also undisputed that Graf's salary, which at first was $ 125 and later $ 150 per month, and rent of the store room were paid by defendant direct from the home office.
Defendant's evidence is that it furnished Graf with a sum of money with which to open the store, and that out of this Graf paid for office help, petty expenses and the other expenses of the business, for all which he took receipts and at the end of each week these receipts, with a statement of his expenses, were sent in and defendant thereupon remitted a sufficient sum to cover such expenditures. At first the amount stipulated for expenses each week was $ 200, then it was increased to $ 300 and later to $ 500 per week as the business grew. Defendant further claims that these weekly remittances were promptly sent and were ample to cover the expense accounts sent in, and that, so far as the business was concerned, there was no necessity to borrow money nor did it know any was being borrowed or used in the business; that the money sued for was not in fact so used, and that Graf had no authority to borrow money.
On the other hand Graf, testifying for plaintiff, says that the business was opened by him September 1, 1908, with a required outlay on his part much larger than the amount furnished by the company; that he sent in a statement of it amounting to $ 500 and the company sent him only $ 200 holding back $ 300. He further testified that the only account opened with the bank was in his name and that the money from sales of goods was deposited to this account and the expenses, outside the store rent and his salary, were paid by him out of this bank account; and that a statement of these expenses with receipts therefor together with a check for the balance of the money remaining was sent each week to defendant; that only the expenses for traveling men, office help and petty expenses were reported in these weekly statements, on which he was to receive a weekly reimburement. That a third class of expenditures was for repairs of goods sold on guarantee and for advertising necessary to establish the business and that these expenses were not included in the weekly statements but were to be settled for at the end of the year at the Chicago Automobile Show in February. These expenses were such as would be necessary to cover the territory tributary to Kansas City being parts of Missouri, Kansas, Nebraska, Oklahoma, Arkansas and Texas; the requirement made of Graf being that he do a thirty thousand dollar business the first year. He testified that he did a forty thousand dollar business.
It is Graf's contention that the defendant did not remit promptly to cover these weekly statements sent in by him; that in October, 1909, the amount of expenses sent in by him and not reimbursed by the company amounted to $ 850 which was finally repaid to him by the company but no additional sum was deposited for expenses so that he was obliged to borrow money to keep the business going, and on November 29, 1909, he borrowed of plaintiff the sum of $ 500, a part of which is herein sued for; and Graf also swore that he had borrowed money of plaintiff on other occasions and that defendant's president knew it and made no objection but afterwards gave him money by which these former loans were repaid. He further testified that the money borrowed of plaintiff was for the defendant and was used in defendant's business and not for himself individually.
No communication was had, either directly or indirectly, between plaintiff and the defendant company until long after the loan had been made and after Graf had been discharged as defendant's agent.
Shortly after the loan was made, defendant, finding that Graf was short in his accounts, discharged him and had him arrested for embezzlement, and then the debt was presented to the defendant's president who denied that Graf was a manager but claimed that he was only a traveling salesman.
There was no note given by Graf to plaintiff. Simply her check to him for $ 500 and afterwards he paid her back $ 200 of it.
Under the instructions of the court the jury found a verdict for the balance due plaintiff with interest from date of demand of payment. Defendant appeals.
Although the whole case was tried in the circuit court on the theory that the defendant had ratified the act of Graf in borrowing the money, yet plaintiff now insists that she is entitled to recover without regard to...
To continue reading
Request your trial